The Ferguson Lie

Americans may be a smart, educated people, but we are lazy and ignorant. It’s too much effort for our delicate sensibilities to gain a deeper understanding of how our nation functions. This is why the Ferguson Lie happened. This is why the Ferguson Lie works.

That the grand jury did not indict Ferguson Police Officer Darren Wilson was a foregone conclusion. To those of us who don’t have to look up a study or read a law review article to understand how indictments happen in the real world, the outcome was clear when St. Louis County District Attorney Bob McCulloch announced that he would present all the evidence to the grand jury. Wachtler’s “ham sandwich” has grown trite in this discussion.

The Ferguson Lie is an appeal to our sense of fairness and transparency. We were played. McCulloch’s lengthy spiel before announcing “no true bill” was to spread the lie. To the ear of the media, McCulloch’s pitch was appealing; the grand jury heard all the evidence. The grand jury transcript will be disclosed to provide complete transparency. Witnesses lied to the media, but the grand jury heard the truth. The grand jury saw the hard evidence. Nine whites and three blacks, so no one would think that the grand jury was denied the voice of people of color, sat on the grand jury, which met for 25 sessions and more than 70 hours of testimony.

The grand jury did the dirty work that America needed done. The grand jury has spoken.

This is the lie.

The description of what happened with the grand jury, how it heard all the evidence, how it will be transparent, is intended to appease our innate sense of fairness. Americans love things that appear fair, even if we don’t quite understand what actual fairness means. This sounds as if it was done as well, as fairly, as it could possibly be done. But it’s a lie.

“All the evidence” is a phrase that applies to a trial. A trial is a procedure that happens in an open courtroom, where adversaries zealously present their case and challenge the other side’s case. It is transparent because we can watch it unfold, develop, happen before our eyes. We hear the questions and answers, the objections and rulings. We hear the request to admit evidence and the voir dire and challenge to its admission. We hear the opening arguments and summations.

McCulloch put on a play in Ferguson. His press conference announcing the foregone conclusion was remarkable in many ways, not the least of which was how he sold the argument for “no true bill” rather than the position he, as prosecutor, was duty-bound to champion. The man charged with prosecuting killers argued the case for not indicting Wilson.

McCulloch didn’t have to go to the grand jury at all. He could have prosecuted Wilson by fiat had he wanted to do so. He did not. He was not going to be the person who charged Wilson with any variation of homicide. But in deciding to take the case to the grand jury, the lie was born.

Whether Darren Wilson would have been convicted after trial remains unclear; perhaps the case against him for the killing of Michael Brown wouldn’t have survived scrutiny. Perhaps the structural benefits given law enforcement to kill without fear would have allowed him to circumvent conviction. Perhaps he wasn’t guilty. We will never know.

The grand jury transcript offers little comfort. Those who explain that it’s transparency are lying to you. It’s all part of the Ferguson Lie. While it tells us what was presented, it doesn’t tell us what was not. It’s unchallenged, unquestioned and unquestionable evidence. There is no adversary in the grand jury to roar against its one-sided presentation.

That it ended without the prosecutor asking the grand jury for an indictment is unheard of. By this omission, it ended with the prosecutor telling the grand jury that a close call goes to the defendant. It ended as it was meant to end, as the foregone conclusion demanded it end.

The merit of the grand jury presentation relies entirely on our acceptance of Bob McCulloch’s office desiring an indictment against Darren Wilson. Just as a prosecutor can indict any damn person he pleases, he can similarly make sure a person is not indicted. He does so through subtle tricks. He does so through big lies. Like presenting “all the evidence.” Like the Ferguson Lie.

Had the prosecution desired an indictment against Ferguson Police Officer Darren Wilson, the presentment would have taken an hour, maybe two, and there would have been a true bill by close of business the next day, well before Michael Brown had been laid to rest. The grand jury isn’t the venue to present “all the evidence.” That’s what trials are for. The grand jury serves a very limited function, to determine whether sufficient evidence exists so that there is probable cause to proceed to trial.

In Ferguson, the grand jury served a very different purpose. It was the mechanism by which the guardians of the status quo protect the American dream of an orderly society, where the appearance of challenge is preserved so that lazy and ignorant Americans can sleep well at night, secure in the belief that their officials and institutions are doing the job of protecting their comfort against the unsavory and the malcontents.

This is the Ferguson Lie. Will America fall for it? Of course we will, just as we have so many times before. It’s too much work to do anything else. It’s always been too much work for Americans.

The Ferguson Lie isn’t in whether Darren Wilson was charged or not, but the appearance of the justice system working when it was just stagecraft.

If the prosecutor thought that a charge was appropriate, then as you said, he either would have asked the local cops to take out a warrant or would have done the same grand jury procedure he’d do with any other alleged murder where he thought he didn’t have probable cause. If he thought he had probable cause, presenting all this evidence to the grand jury, makes no sense because it confuses the role of the petit jury with that of the grand jury. If he didn’t think he had probable cause, then even taking the matter to the grand jury was unethical. As a prosecutor, he had a duty to zealously pursue charges he thought were founded (and stood a chance of being proved in court) and not to pursue charges where he thought that the law wasn’t actually violated.

You are saying the prosecutor violated the law and legal proceedings by taking it to a Grand Jury without seeking the indictment, I agree. He broke his normal course of duties and should be removed.

The Grand Jury members I hope look at the video they were not shown of the cop leaving the police station for the hospital. There is not one mark on his face. They faked his wounds or made them later to give himself the excuse in his mind.

Nothing in “SlackerSlayer”‘s message even implies that he wanted the grand jury to break any rules. The phrase, “the video they were not shown”, is consistent with a desire for the grand jury members to become aware that they were given incomplete information, and is not consistent with the claim that it should be read as disappointment that the grand jury would not break the rules to have seen it during their deliberations.

Thank you for speaking the truth. I do think that many of us in St. Louis recognize that this was merely play-acting on the part of the so-called “prosecutor” and that his lengthy “explanation” of the outcome made that even plainer to anyone who had any remaining doubts.

“McCulloch put on a play in Ferguson. His press conference announcing the foregone conclusion was remarkable in many ways, not the least of which was how he sold the argument for “no true bill” rather than the position he, as prosecutor, was duty-bound to champion. ” This isn’t the truth. Prosecutors are not “duty bound” to champion a prosecution. Often, a case will be turned over to a prosecutor and they decline to prosecute; they don’t even put it before a GJ or otherwise bring charges.

The prosecutor did make a mistake here, though. In our system, the normal course is that, once a prosecutor decides there is enough evidence, they go to the GJ to secure charges. Here, the prosecutor announced prior to marshaling the evidence that he would put the case before the GJ no matter what. That was an abdication of his responsibility; if there isn’t enough evidence, it shouldn’t even go to the GJ. Doing so here gives rise to legitimate complaints because (a) this prosecutor did something out of the ordinary which allows people to say this different use of a GJ is a bad use of it and (b) people expect a GJ to indict and when they don’t, the system is questioned.

It’s not merely an abdication of responsibility, but as noted above, a violation of the ethical rules prohibiting presentment where there the prosecutor doesn’t believe probable cause exists. Those who see it only as a political tool have no issue with it; lawyers are not so sanguine.

Most prosecutors don’t try for an indictment unless they expect to get it. There were pressures in this case to put it before a grand jury even if it was difficult to win an indictment based on the evidence at hand.

You do realize he is disagreeing with your narrative right? He is saying that it made perfect sense that there was no indiction and that it wasn’t unfair, and that the only reason there was ever a trial in the first place was because of the unjustified outrage from locals.

This is a law blog, primarily for lawyers and judges. There have been a lot of silly comments by non-lawyers who have no clue what they’re talking about, but they aren’t of any consequence. It changes nothing, and isn’t taken seriously by anyone who is knowledgeable. We just shrug and chuckle. And every once in a while, a non-lawyer offers a truly brilliant thought, and it’s deeply appreciated.

By the way, unless you’re hiding from the Mossad, comments from people who use phony email addresses aren’t welcome here. This was your one shot. Your choice. Don’t care.

Ha. Primarily for ‘lawyers and judges’, but you attract civilians like flies. Go figure! The corollary to your last sentence is, “You don’t have to be brilliant to be a lawyer (or judge), you just need a frumpy old suit, a pair of worn-out shoes and a spaghetti-stained tie.” Now I’m a bad mood. Hope the cranberry sauce is good. 8 x 4 = 32.

No. This may be too nuanced, and thus confusing. At the conclusion of the presentment, the prosecutor will tell the grand jury about the options available to it, from indictment on all, some, one or none, of the proffered crimes. Ordinarily, the final words (before thanking them for their service and willingness to do as he asks) will be his recommendation as to the grand jury action.

Here, the grand jury was informed of its options, but there was no recommendation. They most assuredly “did not indict Wilson.” The prosecutor, however, did not make a recommendation that they do so.

If the prosecution did not believe that probable cause existed to present the case to the grand jury and obtain an indictment, it would be an ethical violation to do so. If they did believe that probable cause existed, they should have (as is the norm in essentially every presentment) asked for an indictment. There are no atheists in foxholes, and no neutrals in the grand jury.

By the way, that’s why all the lawyers are incredulous at the fact that the prosecution did not ask for an indictment. That’s their duty or they shouldn’t have presented the case.

But again, as one poster pointed out, wasn’t he under extreme pressure by the African-American community to prosecute? And because he knew the evidence would not substantiate the claim that Wilson murdered Brown, he chose to present the case to the Grand Jury to in fact “be fair”? Or more probably, to pass the buck so that he would not receive the lion’s share of the wrath of the locals because he didn’t prosecute?

Is there a reason why repeating the same thing over and over is necessary? There is no exception that allows him to present to the grand jury do appease public pressure. “But he did it?” Yes, he did. “But, but, but…”

“But if it was unethical, then why was he allowed to do it?”

Because there are no little elves sitting in the back of courthouses that spring into action when a prosecutor engaged in unethical conduct and slay the unethical prosecutor with their sharp, ethical elf swords.

I understand the point you’re making about how this is not the usual method of operation for a grand jury. Darren Wilson, and police officers generally, are clearly receiving a benefit that other criminal defendants do not. But it seems to me the best thing would not be to treat police officers like we treat everyone else, but to treat everyone else like we treat police officers. Unlike defense attorneys, whose only duty is to zealously represent their clients, prosecutors are supposed to make sure justice is being done. Too often they don’t because they are so caught up in the ‘adversarial’ nature of the system, too obsessed with winning to care. Wouldn’t it be an improvement to the grand jury system if they all operated like this? I’m not a lawyer and I would genuinely like to know. Could we reduce bad indictments by somehow mandating that grand juries hear all the evidence? Might that at least slightly ameliorate our ham sandwich issue?

Yes, everyone “should” get the same treatment. Grand juries are essentially rubber stamps for the prosecution all over the country. If the prosecutor had really wanted an indictment, there would have been an indictment. The real solution would be either (1) get rid of grand juries altogether, or (2) allow both sides to present their full sides of the story as a sort of mini trial. The latter might result in fewer needless full-blown trials and fewer innocent people either being convicted or giving in to plea “deals” out of fear of what could happen at a full trial – in other words, maybe justice would actually be better served than egos and a lust for power.

First, bad indictments are not the problem that bad convictions are. Sure, they’re bad, but there’s a cure for that- trial.

Second, its not that Wilson was treated fairly here, its that the prosecutor wanted to dump the case from the get go but didn’t have the balls to say that’s what he was doing. Instead, he had the grand jury dump the case and announced that the system worked.

Third, why not do more grand juries this way- “all the evidence” needs to be tested by cross-examination. The grand jury is a one sided proceeding, no matter how “fair” the prosecutor claims he wants to be. We keep things fair by having two sides.

It would be wonderful if all grand jury presentments could be as “thorough” as this one, but they won’t, and, as a practical matter, can’t. Hell, prosecutions don’t come anywhere near this depth in just the evidence against a defendant, no less the exculpatory evidence. The battle over the sufficiency of the presentment of evidence (not to mention inferences, arguments, etc.) of innocence would be never ending. As great as it would be, it would never be feasible.

You’re suggesting a complete overhaul of the justice system, which I’m cool with, but it’s beyond impractical. How about these self-entitled piece of crap prosecutors take some responsibility for their actions, stop looking the other way on police misconduct, and stop measring their success by the number of people they convict?

Also, the system is the way it is because of 80 years of tough on crime bullshit. This system was built to punish Americans, not to pursue justice. You want to fix this? Stop voting for anyone with anything like a ”tough on crime” agenda, stop trusting prosecutors to do anything resembling the right thing, start criticizing them, and for the love of god, stop putting prosecutors on the goddamn bench

Thanks for the replies. I don’t think the issue with cross-examinations is any issue at all. The cross-examinations are still exactly where they always are: at trial. In my imaginary system, both damning and exculpatory evidence is presented to the grand jury, and if the case still goes forward, you present the evidence again at trial and cross-examine there. The only effect of this would be to place a slightly higher bar on indictment than we currently have. You would have exactly the kind of mini-trial that Ted mentioned and then you’d have the actual trial, which could only improve the defendant’s chances overall.

The feasibility reasons I can understand. If the idea isn’t workable for reasons related to caseloads and time constraints, I can see why they don’t do it. That’s the kind of practical information that gets lost in debates among amateurs. If that’s the case though, I’m not sure how you improve the situation. Getting rid of the grand jury seems eminently sensible since it serves no purpose, but it would not actually improve the situation. It would simply trade in an extremely low bar to indictment for a non-existent bar. Is there any way to make indictments harder to get without bringing the justice system to a grinding halt? If not, I suppose the only thing we can do is try to make improvements at later points in the process. I like the idea of keeping the bench from being loaded down with too many former prosecutors, but I’m not sure how we’d go about this as a matter of public policy. I suppose we could agree to only elect politicians who swore to appoint more former defense attorneys as judges.

NM, this is a law blog, not reddit. It’s meant for a level of discussion amongst lawyers and judges, so I’m going to cut this off here and trash further responses. I’ve already deleted numerous non-lawyer replies that fall far below the minimum level of knowledge and thoughtfulness expected here. Sorry, but this just isn’t a discussion board for non-lawyers.

Reddit has many communities with very diverse membership. For instance /r/law is mainly made up of lawyers, and a place where one would typically find a “level discussion.” To better convey your point, you should say “This is a law blog, not /r/politics.”

In other words, a non-lawyer (gasp!) came very close to refuting your point or at least bringing up an intelligent line questioning about it, so it’s time to quit while you’re ahead. You know, because they are just not bright enough to comment here.

IANAL, but a long time lurker. Please don’t let an ignorant jerk like this stop you from allowing non-lawyers to commenet. I know you’ve written before about the insane questions and comments, but you do a great service for those of us who want to learn more about the law.

I appreciate what you’re saying, Seth, but some days it gets particularly wearing. Today is one of those days. This isn’t a legal Q&A site, or a place for non-lawyers to spout their personal visions of the law. I have no issue with non-lawyers reading, and asking relatively thoughtful questions, but then I get assholes like this.

So you know, I’ve probably trashed about 100 comments today, ranging from bizarre to incomprehensible. I’m sure each commenter thought they were brilliant and deeply incisive.

AM, not you. Your questions were thoughtful and appropriate, but just beyond what SJ is here to do, for lawyers and judges to discuss legal issues rather than for non-lawyers to get answers to basic legal questions. AM, on the other hand, was an asshole.

Where did we get the idea? Well, because that’s what it looks like from the outside looking in. That is where! Just because YOU never ran across a prosecutor who,… does not mean that there are no prosecutors out there who do measure their successes according to this ungodly calculus. And in any case, how do we know you are not wearing blinders? How do we know what prosecutors think when they go home for supper, or what they might dream about at nite? You went from “former defense attorney” to Prosecutor. Well, that says it all, in my book!?! Personally, I would be more impressed if you went the other way: From prosecutor to defense attorney. Yes, that happens occasionally. But that’s just me, a former defendant in a kangaroo court proceeding about which I’ve written voluminously, here and there. Piedmont, your comment is completely bogus and disingenuous on its face. I do not believe one word you say. I’m even surprised you got posted. Probabably to p!ss me off. For the record: My prediction last nite that Officer Wilson in Ferguson would be indicted was dead wrong, but I got the “context” right, as substantiated by the essay above, with which I have no disagreement. SHG nails em again, and gets it right! IMO.

While I agree about the spin the media is being given, I’m not so sure about whether the prosecutor behaved unethically with regards to the grand jury itself. As always, the rules are a good place to start. Rule 4: “The prosecutor in a criminal case shall: “(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;”

Since I only ever worked as a corporate department billable hour factory line worker, and not in criminal law, I have a couple questions about how this rule works. First, is a grand jury ever used to aid the prosecution in fact-finding? Or is it only ever used to present facts known to the prosecution? If the former, then it could be that the prosecutor did not know whether the charge was supported, but went with the “all the facts” approach in order to discover the truth of the matter. (Not that this interpretation would be necessary; I’m just curious whether this is ever a plausible and proper use of a grand jury.)

Second, is convening a grand jury considered “prosecuting a charge”? If it is, and if the prosecutor knew the charge was unsupported, then I think you’ve got a pretty clear case of professional misconduct. If not, then it seems like a pretty handy way to try to prevent riots and other extrajudicial remedies by the public. Not necessary successful, but not entirely unreasonable either. After all, the defendant usually has no role in the grand jury, right? I know Wilson was called, but what I mean is he’s not mortgaging his house in order to pay for defense counsel during the process. If the process isn’t prejudicial to the defendant, doesn’t violate the rules of professional conduct, and does serve some greater social function, then I think there’s a good case to be made that it’s the right thing to do. Or at a minimum, not necessarily a wrong thing to do. (Of course, if he’s just doing the dog and pony show as a CYA move, then it seems like an unethical use of government resources.)

The grand jury’s function is to act as a check on the system to make sure there’s at least a little evidence (specifically, probable cause). It’s the same level that a magistrate is supposed to look for when he considers issuing a warrant. In many places, a grand jury can do their own investigation if they put their mind to it, but it’s extremely rare and they normally just consider the charges brought before them by the prosecutor.

And, that goes to your other question: an ethical prosecutor should not bring a charge to a jury that he doesn’t believe has AT LEAST probable cause, and for which he thinks he has evidence that could be beyond a reasonable doubt.* This was a dog and pony show.

*It doesn’t have to be evidence he has in his possession at the moment he submits the charge to the jury, such as if he’s still waiting for lab results to confirm that suspected heroin is actual heroin. Also, evidence sometimes becomes unavailable over time (e.g. a witness backing out) or turns out to be wrong/false, unbeknownst to the prosecutor after probing by defense counsel.

I’ve worked in criminal law, not as long as Scott, but for some time. His OP stated it perfectly well, but I’ll put it in different language- if a prosecutor wants to dump a case, but doesn’t want to say that’s what he’s doing, he can put it in the grand jury and have them dump it. That’s what the prosecutor did here. In secret. And then he walked out and proclaimed that the people have spoken, the system worked. Whether that violates Rule 4, I don’t know or care. I do know it makes the guy a dirtbag.

I get the basic pass-the-buck strategy, though whether or not he’s a dirtbag seems to come down to two questions. First, whether such dumping is in violation of the rules of professional conduct. And second, what his motive for the maneuver is. If it is ethical, and if done with a genuine motive of preventing a riot, I think there’s a reasonable case to be made that he’s not a dirtbag.

Of course we should generally be in favor of actual transparency, and he is subverting transparency here by misrepresenting the role and procedure of the grand jury. But, he’s also dealing with a situation where the public perceives procedural justice as a form of injustice, and is very likely to riot if there is a just outcome. In that case we could say that the prosecutor should still be honest, because that duty is on him, and if a riot happens then that’s on the folks who rioted. But, I think in this scenario, even making the ‘wrong’ choice still wouldn’t rise to dirtbag level.

So here I’m trashing comments from non-lawyers for asking stupid questions, and now I have new lawyers (albeit reddit r/law fans) asking stupid questions. I can’t win?

One of the flaws with your question is that different jurisdictions have different rules, so there is no “rule” that covers every state’s procedure. That said, there are such things as investigative grand juries, which are not formed to hear indictments but to find facts.

Rule 4 applies to regular grand juries, and correctly states the rule, that it’s unethical for a prosecutor to prosecute a person where he does not have a good faith belief that probable cause exists. Submitting a case to a grand jury is, indeed, prosecuting a case, and it should not happen unless the prosecutor believes he has probable cause.

Are you suggesting that the rule gets violated? Are you suggesting that prosecutors who violate the rule don’t get sanctions! Oh my!!! Yeah, it’s not always perfect in prosecutorland.

When a defendant is aware of, or under arrest in advance of, a grand jury proceedings, most states have procedures that entitle the defendant to testify before the grand jury. It’s very dangerous stuff, as few prosecutors are quite as kind and helpful as they were to Darren Wilson. Now, is this enough waste of my bandwidth on this post to discuss “all about you and stuff you are clueless about but want to know”? For more info, go to reddit r/law.

I agree with your OP. I think, however, you missed an opportunity to really hit hard at the institution of the Grand Jury itself. Is it really the Ferguson Lie or should it not be called the Grand Jury Lie? There is a reply by a prosecutor over on Judge Kopf’s blog that calls Grand Juries “focus groups”. Why does our system of justice need focus groups? Why not just make a determination based upon public opinion polling? I recognize your point that the rules governing grand juries are not the same in every jurisdiction but I can’t think of a jurisdiction where the underlying purpose of the Grand Jury is not the same–to cover someone’s ass.

This was a post about the infirmities of one specific grand jury proceeding. If I wanted to write a generic post about the evils of the grand jury system, then that’s what I would have written. I didn’t. Nor do I give a shit about stupid stuff one prosecutor says in a comment elsewhere. Focus.

This is classic in all political systems: be seen to dig deeply and thoroughly, but not anywhere near where interesting things are buried and avoid court at all costs. Part of the problem may be deeper, rooted in the religious zeal of the founders, which tends to send politics (with a lowercase ‘p”) veering towards retribution rather than justice, the latter being politically awkward at the best of times. Couple that to a political need to “maintain” social order and ensure the peasants face mounted knights with wooden pitchforks and a different outcome would have been both surprising and refreshing.

Of course there is a lynch-mob exception. The prosecutor did not want to prosecute, probably believing no crime had been committed and that he would not prevail in a jury trial. But, because there was a lynch mob outside his doors, he decided to take it to a grand jury anyway. I think we all agree that his behavior is exceptional, and that he would not have behaved this way if there weren’t such massive attention on the case.

You say “He could have prosecuted Wilson by fiat had he wanted to do so”. Could he have? I tried to google the answer, but do not know the right things to search for. I got as far as “some cases require a grand jury”, but could go no further.

That prosecutors can’t ethically or legally do what happened here but did it anyway doesn’t make it ethical or legal. Haven’t you been paying attention? Bad stuff happens all the time. Just because it’s wrong doesn’t mean it doesn’t happen. There is no exception that allows a prosecutor to hide behind a grand jury to avoid fulfilling his duty. That doesn’t mean it can’t (or didn’t, as here) happen.

As to McCulloch prosecuting Wilson by complaint/information, that’s not the question you asked before:

I thought non-prosecutors could bring their own cases to a grand jury.

If you want the right answer, you have to ask the right question. McCulloch is the prosecutor, and he could have circumvented the grand jury by filing the charges without a grand jury indictment. And I would have thought you would be better at google. Do I need to LMGTFY from now on? I will, if you need me to.

Scott, I am not sure if this on topic enough or not, but out of curiosity, which of the five charges (I believe there were five potential charges that the grand jury was considering) would you have requested that the grand jury return a true bill?

I am a federal prosecutor and have experience only with federal grand juries. I can tell you that in my experience I’ve never presented (nor known any of my colleagues) a potential indictment in such a manner.

Granted only complete ass-hat’s show up for press conferences 15-20 minutes late, but then again he don’t work for “nobody” but those who he works for, so there!

After-all, Bob had his assistants deliver the “goods” that were given and those that weren’t. He just orchestrated the jubilee from behind the curtain and donated his saliva to seal the “no bill” envelope.

He must have used damn near all of his saliva up doing so as well. I reckon he could have gone through a gallon of water during his press conference based on the number of times he “cleared” his throat both literally and figuratively.

Screw You Bob. I take it back, you don’t deserve any slack and you know it.

This is the biggest crock of crap I’ve ever read. It’s been speculated that McCulloch didn’t see enough evidence to charge Wilson with anything so he did the Brown family a favor really for sending it to a grand jury to decide. As the prosecutor he could have dismissed it all before it even began. The jurors were picked in May (before the shooting) so the statement regarding them having blacks in that group to show that there is representation of blacks in the jury is ridiculous. Face the facts here people, it’s how the justice system works. If you don’t like it, make a career out of practicing law and try to change it. Don’t spit out BS like this because your ignorant. Was what happened right or wrong? The grand jury decided that. Was it motivated by race? If you think this is s racial issue, then your the problem in society.

This merely sounds one man’s “opinion,” making a bunch of baseless claims and ignorant ASSumptions. One essentially being that those 12 grand jurers “collectively” aided and abetted a ‘killer cop.’ What “SIMPLEJUSTICE” is doing is no different than the media and the “protestors,” MB’s parents, Obama, Eric Holder and Al Sharpton are doing, which is to “further” pervert our justice sysyem, and to act as molotov coctails lighting more fires. Our justice system has NEVER been “perfect,” simply because there is no such thing as perfect. I find it to be highly disturbing and more detrimental to condemn the “jurers,” our who happen to be our fellow citizens, neighbors and coworkers. Consider this, if there was some sort of jury tainting taking place, the only people that would “know” that are the damn jurers themselves! It is their job to file complaints, come forward, etc, etc, etc to “change the law” based on the proceedures that they witnessed, themselves, in “this case?” By the way, “this case” is located in “Missouri.” Not Kansas, New York. This is not a “national” criminal case, emergency or “crisis.” Let’s not forget that there is still this little thing called the Missouri Constitution. It governs the rule of law in the “country” of Missouri. The FEDS involved in this “staged event” need to be arrested and physically deported to the border, and the Missourri National Guard(Militia) should be the one’s doing it! As well as protecting the city of Ferguson last night, both actions and many more that Gov. Nixon “intentionally,” in my opinion, refused to do. Because he is ONE OF THEM! NEWS FLASH: EVERYTHING that is going on in FERGUSN has ABSOLUTELY NOTHING to do with “racism” or even the actual shooting that was “used” and continues to be used, to LIGHT THE FIRES! Idiots.

Hey Brick Baby, I hear you been usin’ my name in vain. Lay-off now, Bro. I thought U and I was friens? Remember that nite went went a partyin’ down there in olde Saint Loui? The Red Lite Distric! We had a ball, and now you treatin’ me like Dirt. Come to yer census Man, I mean get Real. This ain’t no Big Deal. We can work this out together if we all come together, see what I mean? We can solve these interstitial problems if we put our mind to it. Come on now, Bro, I beg of you to come to an agreeement. We don’t kneed no national guard or nothin’ like that there; why they put that out there like that? Tell me, pleas, tell me whyyy? We know this is all polylitical! All the best, Bill, aka William Doriss (somewhere on the East Coast, north of Hawlum).

Once the normal prosecutorial option of declining to file charges was effectively removed, it was going to be one travesty or another. If this was the travesty it had to be, it was a mild one. Had there been a special prosecutor, it would have been the Angela Corey circus all over again.

Yeah, what would I know about looking over evidence, with only 35 years experience as a scientific researcher? We should just turn the whole system over to criminal lawyers, who are the only ones capable of evaluating evidence. In fact, you should just demand people enter their bar exam information before they read your blog.

Yeah, what would lawyers know about law. Now you’ve just embarrassed yourself and lost all cred, which goes to show that a scientific researcher with 35 years experience can be just as much of a moron as anyone else (even a lawyer), anything else to persuade us as to your singular awesomeness?

Heh. #Irony. Notice how you came here? Absent your comments, you don’t exist except in your own fantasies. But just because I’m a particularly swell guy, I’m going to help you out despite your delusion.

This is a post about procedure, not weighing the evidence. Lawyers understand that. Thoughtful people get that. You don’t, so you’re arguing the wrong point to an audience that doesn’t think you’re nearly as brilliant as you think of yourself. A scientific researcher for 35 years?!? Wow, aren’t you special.

As much fun as this has been, we’re done unless you have something more substantive to say than I’ve hurt your delicate feelings.

Is it so hard to believe that perhaps, just maybe, the grand jury got it right. I know that’s not what people want to hear, but the reality of the situation is that Ferguson is about more than Mike Brown. Using his death as a beginning into fixing what’s broken is good. Very good. However indicting and prosecuting someone doing their job to protect the community isn’t the answer. I’m sorry, but it is painfully obvious that Mike Brown was the aggressor in this situation. Did he deserve to die. No. Did the officer have another option in the heat of the moment. Most likely not, but we’ll never know. Was Mike Brown’s death more important than the loss of life, property, and safety of the STL area? I think not.

Whether the grand jury got it right or not isn’t the subject of this post. That said, having read salient parts of the record, there is a very good chance they didn’t. Things are often “painfully obvious” to the painfully clueless. To others, they tend not to be nearly as obvious. And you don’t have the right to forfeit Michael Brown’s life because you think it was worth it. Give up your own any time you want, but not someone else’s.

Excellent post. You took things farther than I had seen them, and I appreciate that. I agree and now think that not only did the prosecution completely abrogate its obligation to represent the interests of the victim, and “the People”, but that it choose a grand jury forum to avoid exposing its unwillingness to prosecute Wilson at all.

This marks a complete perversion of the grand jury system, and I do hope, as others have suggested, that the prosecutor in this mess be held accountable, legally, for his breach of his duties.

You failed to mention that the Grand Jury was the wish of Ferguson black community leaders who felt McCulloch would never indict Wilson on his own. In other words he was pressured into a Grand Jury. And while this Grand Jury process did not follow the pattern of most other Grand Juries it did follow the established pattern for Grand Jurys convened by prosecutors that are pressured into doing so, as happened in this case. But lets say for a minute that McCulloch did indict Wilson without a Grand Jury and he gave into pressure to prosecute this man against his better judgement, what kind of prosecution do you think he would have put on? How hard do you think a lawyer tries to win a case that they really want to lose? And if Wilson were found not guilt by such a trail jeopardy would attach and he could never be retried, putting a end to any chance of a Federal Court trial for murder. With a no bill Grand Jury Wilson can still be tried in a Federal Court.

Does anyone here actually practice criminal in the county in question? I’m a PD in NYC (10 years) and i have never seen a GJ presentation conducted in such a way. The prosecutors had no interest in procuring an indictment and in subtle ways ensured that they would not by certain strategic moves and questions that anyone with experience as a felony prosecutor or defense attorney would recognize.

For example, i read the entire transcript of Dorian Johnson, Michael Brown’s friend who was with him at the time of the police encounter. It would be reasonable to suspect that he would be the prosecution’s main witness against Officer Wilson, the defendant. Did you know the prosecutors first made the GJ spend the whole morning watching every interview Dorian Johnson gave in regards to this incident before calling him to testify in the afternoon? This is hours and hours of interviews and the GJ was also handed a transcript of these interviews. This is unheard of, to me, in grand jury practice…remember this is not the defendant they are quesitoning, this is the prosecutions main witness. They clearly sought to emphasize his inconsistent statements before he even had the chance to testify in front of the GJ.

The last 7 pages of testimony involved a discussion of Mr. Johnson’s prior record from a couple of years ago in regards to a petty theft case he caught while in college. The prosecutor encouraged a deep discussion about this and wanted to make sure that the GJ knew that he had been put on probation. These are the final things the prosecutor had their main witness tell the GJ…7 pages of testimony regarding his two prior petite larceny cases from years ago. That’s something Officer Wilson’s lawyers would have tried to do during their cross-examination had this gone to trial…instead the prosecutors who are suppose to be seeking an indictment are doing this to their main witness. The fix was in.

It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788 ); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

Congrats, you identified a procedural foot fault — the result of which caused more people to be involved in the review of the case — and then wrapped it up in a sensational headline that you felt the need to keep repeating. On a side note — you appear to be an asshole so I hope that has helped you make a lot of money and get a hot wife otherwise it seems like quite a waste.

Is it possible to compare how McCulloch usually handles grand juries compared to the Wilson grand jury? Those documents are probably sealed but still, the bias is so obvious after reading some of the grand jury transcripts that it would call for an investigation in a just world. Thanks, I appreciate your work and writing.

I read your piece on Tamir Rice and completely agree with you. I’m trying to keep an open mind with regards to this blog but I disagree with you. I have no legal background. I am simply an American citizen. I have a healthy suspicion of law enforcement, my father was physically abused by an off duty cop in the late 80’s while filming a protest at an abortion clinic, so I am aware that some cops are assholes.

The problem I have with your blog is that you think an indictment was necessary to begin with. In my opinion it seems obvious that the physical evidence and the testimony of several witnesses corroborated most of officer Wilson’s version of events. Perhaps events could and should have unfolded differently but should we prosecute a law enforcement officer for murder or manslaughter just to appease the mob?

I do agree with you that the grand jury was a sham but I am fine with it. I don’t think the prosecutor had any other choice. The right thing to do was not bring any charges at all but with the media attention that wasn’t a likely possibility.

No, no, no. “The problem is that the law and procedure should be whatever I feel it should be. I am the ruler of the WORLD!!! Bwhahahaha” – Every non-lawyer who feels compelled to express his opinion despite having no substantive knowledge whatsoever.

I believe you are spot on, unfortunately. Governor Nixon refused to force McCullough to have a special prosecutor, as was requested by many groups (& Brown’s family’s attorney.) It is well know that McCullough’s father was a police officer who was killing by a black man when McCullough was in his teens. Several other family members & friend’s are also part of the force. Even McCullough in the deepest darkest parts of his soul has to know this would prejudice him. But he continued. Unfortunately, this adds to the feeling of betrayal Ferguson (etc.) feel, again. As you noted the is no balancing hand on the scale. He repeatedly stated that quite a few of the witnesses lied & or changed there story esp in reguards to where Brown’s hands were & the direction he was facing. I wasn’t there, I didn’t see it but I will bet he moved arms up & down & turned several times. Their testimonies were given & then discredited as conflicting. Hmmmm. In a jury trial most of these would have been sorted out before being presented to the jury & so would not have been prejudicial. The grand jury asked to see the Brown’s family’s medical examiner’s testimony. And they got it but the expert wasn’t allowed to recieve crucial parts of the information (for instance the crime scene pics & notes.) They were also not told that Wilson collected some specimens from the crime scene & washed off other evidence before it could be collected. So (please note hyperbole) Al Capone should have gathered forensic data in his own case? And lastly, McCoulough is not an idiot. He knew there would be general unrest at the very least, looting & murder at worst. Yet he deliberately released the verdict at 8pm. Mayhem insued. Just like he knew it would. It took the attention off of him & set it back on the protestors, some of whom unwittingly helped him out.

I sat on a grand jury once, and the situation was not pleasant. I demanded that the prosecutor give us some other witnesses, because… evidence. He refused. I demanded they provide resources to further the investigation into this “crime.” (Drug deal) He refused. I called my Dad, he called one of his buddies, a local judge. Suddenly I was public enemy #1. I was “subverting the system.” Talk about an education.

Among other things, I’m an economist. There is an economic issue that lawyers don’t address, and that’s that a grand jury indictment means the individual has to go to trial. Hey- Guys! What do criminal defense attorneys charge? What’s the minimum retainer? A true bill by a grand jury is a $30k bill handed to the accused, minimum. While set up to be an impediment against a corrupt state, the grand jury system had been corrupted into a money-making system that the criminal defense industry benefits from.

Can we say “self interest” without choking?

My question, which I’d love to see answered, is this: I understand the historical origins of the grand jury. No, seriously, I’ve got a PhD in American history. Ever been the subject of a judicial slapdown? I’ve got dozens of them from Gene Brooks. He was brutal with me. He was also a good friend and mentor. Where the fuck is the accountability? Where is it? Show me how this system isn’t broken.

I’m a civil litigator and not licensed in Missouri, so I don’t know anything about the criminal procedure there. With that disclaimer, I understand that prosecutors have an obligation to “do justice” rather than simply obtain indictments and convictions, and that it would be unethical for McCulloch to bring charges that he did not believe in. Thus, if he did not believe probable cause existed to charge Wilson, he could not file charges saying otherwise or participate in the preliminary hearing context because he would have been required in that forum to argue otherwise. But why is it unethical, as you assert above, to use a grand jury as an investigatory tool and make no recommendation on charges? While one use of the grand jury is to obtain indictments in a forum more favorable to the prosecution than a preliminary hearing, I was under the impression that grand juries could also be used to marshal evidence with the grand jury left to decide for itself whether there was probable cause to believe a crime was committed. Is there something in the rules or code of professional responsibility (whatever applies in Missouri), or Missouri statutory or common law, that says otherwise? I am very open to correction because, as noted above, this is not my area of the law, but if my impression is correct, then McCulloch’s presentation to the grand jury in this manner (and without recommendation) would be the only ethical thing he could do other than simply to decline to file charges, which would have been politically impossible.

That’s an excellent question. Short answer (by which I mean no citations) is that an investigatory grand jury is a different animal from a regular grand jury. It’s formed for the specific purpose of investigation rather than presentment. It’s usually referred to as a “special grand jury,” in that its mandate is to conduct an investigation independent of the prosecution for the purpose of ascertaining a fact.

The problem here is that this was not a special grand jury, but a regular grand jury before whom the prosecution made its presentment. It’s not a toss up question based on outcome, but McCulloch chose to present to a regular grand jury, and its his presentment that is constrained by his ethical obligation not to do so unless he believed probable cause existed for it. As confuses so many non-lawyers, this doesn’t seem possible given his ethical duties and the manner in which he deliberately sabotaged his own case for the benefit of Wilson. To which I can only say, welcome to the wonderful world of criminal law.

Larry, I’m going to assume you made this comment in good faith and to try to explain in a civil manner why it is inapposite. The fundamental problem is that the comment assumes a false equivalency between the black experience in America and the white experience in America. Blacks are daily confronted with institutional racism, from taxi drivers who refuse to pick them up, to police officers who exercise stop-and-frisk policies where the only “articulable suspicion” is that they were “walking while black,” to the voter ID rules that disenfranchise and unduly burden blacks’ exercise of the franchise in response to a non-existent and specious fear of voter fraud.

Look up “white privilege” and try to read about it with an open mind. There is no history in this country of blacks oppressing whites and getting away with murder because of their power. It’s quite the opposite, with innocent blacks being convicted and/or lynched for imagined crimes against whites. OJ’s acquittal was never a threat to white power or privilege. The killing of Michael Brown, even if it was a legally justifiable act, feels like another slap in the face to a black community regularly abused by a white police department. I don’t support the rioting, but I understand the rage from which it arises.

I hope you’re genuinely interested in trying to understand this difference in experiences, which is what brings about the differences in response. Understanding is the first step toward constructively addressing the problem.

It’s very thoughtful of you trying to explain to Larry the impropriety of his analogy. However, it is not my way to accommodate such ignorance by treating it as a “good faith” comment and civilly explaining the wrongfulness. You don’t have the experience I have with such comments, and you would do well to take my word for the pointlessness, if not counterproductiveness, of your effort. But more importantly, this isn’t your house, but mine.

If you prefer your approach, then start your own blog and manage it any way you wish. This, however, is my blog, and I don’t appreciate your help in this manner.

You’re right, Yoda. You possess all knowledge. I just happened upon your ignorant rhetoric and tried to put it in perspective. If you think your opinion counts more than our legal system, please keep spreading your venom. You may even garner a few confederates. You won’t hear from me again. I’ve found that nothing can fix stupid.

Well, that didn’t take long, did it Robert. There’s a rule on the internet about feeding the trolls. Don’t do it. SHG know this. You, obviously, do not. Take a lesson.

People who leave comments like Larry aren’t here to be persuaded. They are here to tell people like you that you’re wrong. Welcome to the blog, Robert. Listen to SHG. He knows what he’s doing. And as for Larry, there isn’t a thing you could have said that would change his mind, no matter what. There world is full of morons. He’s just another one.

To be clear: I was not trying to help you. I do not think you need my help.

The problem with specious comments like Larry’s is that, even if he is trolling, there are going to be other people who uncritically will accept the false equivalency. I choose to fight that when I see it with reasoned argument. If I’m wrong, I’ve wasted no one’s time but my own. Of course you are right that this is your blog and your rules. If you don’t like what I’m saying or how I’m saying it, it’s your prerogative to hit the delete key.

Google pointed me here when I started looking for more information on Missouri grand jury procedure, and the information here (both in the posts and the comments) was helpful, and I appreciate that. If you feel I’m drowning you, I’ll happily get out of the tub and let the water levels recede. Best wishes, Robert

Robert, I appreciate your effort and purpose.* This is a law blog, primarily read by lawyers and judges. One of its virtues is that it’s generally inhospitable to knaves. We often disagree and debate, but not with children, fools or nutjobs. They contribute nothing.

So while you were well-intended, your choice to “fight with reasoned argument” was an invitation to Larry to return and spew more nonsense. Your explanation was remarkably civil and well said, which I appreciate, but it wasn’t merely a “waste” of your time. It offered Larry a hospitable soapbox here, when he is free to comment to the extent I allow it (I do my best not to delete comments, no matter now ignorant they are) but otherwise unwelcome. I don’t want Larry to get comfortable here or feel that he is being taken seriously.

If you read through the comments here, and on the Tamir Rice post, you will see some monumentally stupid ones. They didn’t comment because they want to engage in civil discussion or be educated. They commented because they want to “educate” you and me about how wrong we are. I allow these dopey comments to post so others realize what their adversaries are thinking, not to fight with them (or explain to them, as you sought to do). This is doubly true for people who offer such awful analogies. If they can’t see the false equivalency in the first place, it’s because they don’t want to. Neither you nor I can make them.

You are welcome to stay as long as you like. If you do, you will get the sense of how the place works and better understand the level of discussion we try to maintain here. This post has drawn a great many non-lawyers, who are unfamiliar with the nature of SJ. I’m trying to keep things somewhat under control here, as SJ remains a law blog and will continue to be one after those who only came for Darren Wilson are long gone.

* Edit: You are a thoughtful person, and worth a civil explanation of my purpose, whether you agree with me or not. Larry was not. Thoughtful ideas are always wanted here, whether from lawyers or not.

If I were you, I would quickly and quietly delete your post and pray no one read it. You’ve got nearly every “fact” about the legal process wrong, flagrantly, absurdly, horribly wrong. While you are obviously not a lawyer, it’s still wrong to make people stupider. Do the right thing and delete it. Now. Go.

I’m not a lawyer, so I don’t know the rules and procedures of a courtroom. If Ipeople like me did, there would be no need for lawyers. I am a scientist though, (not an English major, so my grammar will be flawed). I am also dismayed by the ease with which the American public can be misled, deceived, etc. As I see it, the issue here isn’t what the police officer did, but the way the process was manipulated to avoid responsibility for an unpopular result. As a person, I find that distasteful. As a scientist I find it unethical. I imagine as a lawyer, I would be either appalled, or excited, depending on where my view of the process lay. Now that I have expressed my opinion as a layman, I’ll not use anymore of your time.

Scott H. Greenfield

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What Do You Think?

I allow thoughtful comments, but please keep yours civil and respectful. There are rules here. I reserve the right to delete or edit any/all comments. Links are not permitted in comments and will be deleted. If you don't like the rules, comment elsewhere. Volenti non fit injuria. SHG